C 257/20
EN
Official Journal of the European Union
4.7.2022
Questions referred 1.
Does EU law, and in particular Articles 15, 20, 30 and 47 of the Charter of Fundamental Rights of the European Union, clauses 2 and 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and laid down in Directive 1999/70/EC of 28 June 1999, (1) and the fundamental principle of the independence and irremovability of European judges, as interpreted by the case-law of the Court of Justice in UX (EU:C:2020:572), preclude a national provision such as Article 29 of Legislative Decree No 116 of 13 July 2017 (‘Legislative Decree No 116/2017’), which, without objective justification, discriminates against the applicant, a magistrate, with respect to the working conditions of comparable professional judges, in the following context:
— the applicant, who has served as a magistrate without interruption since 2002, is not yet 70 years of age (but will turn 70 in 2022), and as at 15 August 2017 had not completed more than 16 years of effective service as a lay judge;
— therefore, although the national provision (Article 29(1) of Legislative Decree No 116/2017) allows her to continue to hold judicial office until the age of 70, the applicant cannot take part in the first assessment procedure for confirmation in the shortlist (ruolo ad esaurimento) of lay judges, which will be announced by the Consiglio superiore della magistratura (Supreme Council of the Judiciary, Italy) in 2022, as provided for by Article 29(3) of Legislative Decree No 116/2017;
— as a further consequence, since she is unable to apply to take part in the assessment procedure for confirmation in the shortlist planned in 2022, the applicant — who had already left judicial office by 31 December 2021 because she had reached the maximum age of 68 under the previous rules — could not be reinstated with effect from 1 January 2022 because the new legislation, although providing that anyone employed on 15 August 2017 should remain in post until the age of 70, also provides that anyone not in a position to apply for confirmation in post should leave the service (Article 29(9) of Legislative Decree No 116/2017);
— on the basis of that national legislation, the applicant will only receive from the Italian Government compensation of EUR 1 500 to EUR 2 500 per year for each year of service, in relation to the number of hearings conducted during the year, subject to a maximum amount of EUR 50 000, relinquishing all remuneration, normative and contributory rights sought in the proceedings pending before the Tribunale Amministrativo Regionale (TAR) Emilia Romagna (Regional Administrative Court, Emilia Romagna, Italy) and guaranteed by EU law for the judicial service performed as an employee, but not recognised as such by the Italian Government, including the coverage of contributions in respect of the employment relationship and the resulting social security benefits;
— the Regional Administrative Court of Emilia Romagna, by protective measure of 9 February 2022, in accordance with the judgment of the Court of Justice in UX and going against Italian legislation and the opinion of 16-17 February 2022 of the Supreme Council of the Judiciary, ordered the applicant to be reinstated as a magistrate until the age of 70;
— on 1 March 2022, the President of the Tribunale di Rimini (District Court, Rimini), in compliance with the protective measure issued by the Regional Administrative Court of Emilia Romagna, ordered the applicant’s immediate return to service;
— by way of compensation for the blatant and continued infringement by the Italian Government of EU law on the legal status and rights of lay judges, the referring judge is being asked to award a sum corresponding to the remuneration that the applicant should have received from 10 to 28 February 2022, in an amount equal to that of a comparable professional judge, which has its legal basis in the protective order for return to service issued by the Regional Administrative Court of Emilia Romagna, but runs counter to Italian legislation, which, while acknowledging the infringement of EU law, on the one hand precludes any possibility of the applicant returning to service until the age of 70 — the applicant having been forced to leave office by 31 December 2021 following a protective measure issued by the Consiglio di Stato (Council of State, Italy) in breach of the judgment of the Court of Justice in UX — and, on the other hand, limits the compensation for the damage suffered by the applicant to a fixed amount predetermined by law, which is much less than the damage actually suffered as a result of the infringement of rights guaranteed by the EU?